Friday, 5 June 2009

Kenedi v. Hungary (Access to Information)

In its recent judgment Kenedi v. Hungary (Appl. no. 31475/05), the Court has given more clarifications on access to information. The applicant in the case was a historian doing research on the State Security Service. For several years he tried to get access to relevant information from the Ministry of the Interior, but to no avail. After continued refusals, he obtained domestic court orders to enforce access. The Ministry, however, continued to obstruct, for example by requiring that Kenedi would sign a declaration of confidentiality. Kenedi refused, also because the Court order had not mentioned confidentiality as a requirement. When he was later given access to part of the information concerned, he was not allowed to publish it. At the moment of the proceedings in Strasbourg Kenedi still did not have access to all documentation.

The Court found violations of a number of ECHR provisions. Article 6 ECHR (fair trial) was violated because of the total length of the proceedings and enforcement - over ten years. Article 10 was also violated in the Court's view. It reiterated that (para. 43) "access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant's right to freedom of expression." In this case, the inteference with the applicant's right had not been prescribed by law. The Court held (para. 45):

The obstinate reluctance of the respondent State's authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness. The essentially obstructive character of this behaviour is also manifest in that it led to the finding of a violation of Article 6 § 1 of the Convention (see paragraph 39 above) from the perspective of the length of the proceedings. For the Court, such a misuse of the power vested in the authorities cannot be characterised as a measure “prescribed by law”.

Finally, Article 13 ECHR (effective remedy) - in conjunction with Article 10 - had also been violated, since the Hungarian system did not provide for an effective way of remedying the violation of the freedom of expression in this situation.

Although again the Court does not formulate a general right to access to documents, what it does clarify is that once access on the national level is ordered (in this case by a court), such access should be effective and be given within a reasonable time. In this case, the authories had been so obstructive, that the European Court did not shy away from calling their behavior arbitrary.